SINGODWALA WAREHOUSING AND LOGISTICS PRIVATE LIMITED,JAIPUR vs. ITO WD 6(4), JAIPUR

1 At the outset of the hearing, the Bench noticed that the ld.CIT(A) has dismissed the appeal of the assessee on the ground of not condoning the delay of 118 days, by observing at para 5 to 7 of his order as under:-

3 It can be seen there is a delay of 118 days in filing the appeal. The appellant has not cited any reason in the form 35 in column 15 as well as the appellant misreported in column 14 that there was no delay in filing appeal. Hence, no reasonable cause has been cited by the appellant for this delay in filing of appeal. Section 5 of the limitation Act 1963 defines what should be considered if there is any delay on overstepping the deadlines mentioned in a statute. The crux can be summarized as under that- 1. There should be sufficient cause and 2. Delay should not be as a result of deliberate inaction or negligence On perusal of column of form 35 at point 15 the appellant has not mentioned any reason for delay as well as no reply to DIN & Letter No: ITBA/APL/5/28/2023- 24/1058506503(1) on 06/12/2023 was submitted against the deficiency letter issued on the appellant. This reflects the casual approach of the appellant. Since there is non acceptance of the fact that the appeal was filed late, there is no cause available in for 35 of appeal memo. In the absence of any reasonable cause, it can be assumed that the appellant has noting to offer in this regard and the appeal is decided accordingly. Various courts have tried to define what is a reasonable cause. In the case of Ajay Dabra Vs Pyare ram & others (SC) No. 15793 of 2019 dated 31-01-2023 has rightly put it as under: - "What we have here is a purely Civil matter. An appeal has to be filed within the stipulated period, prescribed under the law. Belated appeal can only be condoned, when sufficient reason is shown before the court for the delay. The appellant who seeks condonation of delay therefore must explain the delay of each day. It is true that the courts should not be pedantic in their approach while condoning the delay, and explanation of each day's delay should not be taken literally, but the fact remains that there must be a reasonable explanation for the delay." 5.3.1 In the case of Ram Lal Vs. Rewa Coalfields Ltd. AIR 1962 SC 361, the Hon'ble Courts held as under: - "Even if sufficient cause has been shown, the party is not entitied to the condonation of delay in question as a matter of right. Proof of sufficient cause is a condition precedent in the exercise of the discretionary juri iction

3.2 In the case of Balwant Singh Hon'ble Courts held as under Jagdish Sing. (2010) 8 SCC 685, the "We may state that even if the term "sufficient cause" has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned." 5.3.3 in the case of Omate Traders Private Limited Vs. the Income Tax Officer Mumbai (Bombay HC), the Hon'ble Courts held as under "The action which can be condoned by the court should fall wither the scope of normal human conduct or normal conduct of a itigant. While Section 5 of the Lantation Act is being interpreted liberally, it cannot be so šberally that is without any justification since condonation of delay in a mechanical or routine manner wil jeopardize the legislative intent behind section 5.” 5.4 Following the discussions above, and considering the opinion expressed by Hon'ble Courts I rule that there is no condonation of delay application filed and therefore no sufficient cause given by the appellant to file the appeal delayed by 118 days. As a consequence the appeal filed beyond the due date of filing appeal without reasonable cause is rejected. 5.5 Since condonation of delay is not granted, there is no need to adjudication on merits of the case. In this regard, reliance is placed in the case of State of Uttar Pradesh & Ors vs. M/s Satish Chand Shivhare and Brothers SLP (CIVIL) No. 5301 of 2022 dated 04th April 2022 wherein the Hon'ble Court held as under: - "If delay is not condoned, no adjudication on merits is warranted". 6. Decision:- In view of the above discussion and observations, the appeal filed by the appellant is dismissed. 7. In the result, the appeal is dismissed.”

2 During the course of hearing the ld. AR of the assessee prayed that the ld.CIT(A) has dismissed the appeal on the ground of delay of 118 day in late filing

3 On the other hand, the ld. DR supported the order of the ld. CIT(A) and also filed the following case laws in his support.

4 The Bench has heard both the parties and perused the materials available on record. The Bench taking into consideration the facts, circumstances of the case and the affidavit filed by the assessee, feels that the delay so made by assessee in filing the appeal has merit and the same is condoned. However, the ld. AR of the assessee prayed that the appeal of the assessee be restored to the file of the ld. CIT(A) for afresh hearing by providing one more opportunity. From the records, it is noticed that the return of the assessee was processed by CPC u/s 143(1) on 24- 08-2022 wherein an amount of Rs.1,28,986/- had been disallowed by the AO u/s 36(1)(va) of the Act on account of delay in deposit of PF/ESI upto the due dates prescribed under the respective Act and Rs.5,462/- had been disallowed u/s 37on account of interest payment on delay in payment of TDS incurred on behalf of deductee. From the entire conspectus of the case, the Bench is of the view that lis between the parties has to be decided on merits so that nobody’s rights could be scuttled down without providing opportunity of being heard to the assessee. Hence, the matter is restored to the file of the ld. CIT(A) to decide it afresh by providing one more opportunity of hearing, however, the assessee will not seek any 7 Singdwala Warehousing & Logistics Pvt. Ltd. vs. ITO adjournment on frivolous ground and remain cooperative during the course of proceedings. Thus the appeal of the assessee is allowed for statistical purposes. 2.5 Before parting, we may make it clear that our decision to restore the matter back to the file of the ld. CIT(A) shall in no way be construed as having any reflection or expression on the merits of the dispute, which shall be adjudicated by ld. CIT(A) independently in accordance with law. 3.0 In the result, the appeal of the assessee is allowed for statistical purposes

izR;FkhZ@ The Respondent- ITO, Ward-6(4), Jaipur. 3. vk;djvk;qDr@ The ld CIT 4. विभागीय प्रतिनिधि] आयकरअपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZQkbZy@ Guard File ITA No. 1093/JPR/2024) vkns'kkuqlkj@ By order,